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Mental Illness, Your Client and the Criminal Law

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Mental Illness, Your Client and the Criminal Law MENTAL ILLNESS, YOUR CLIENT AND THE CRIMINAL LAW A Handbook for Attorneys Representing Criminal Defendants in Connecticut May 2007 i TABLE OF CONTENTS Pa g e TEN THINGS TO KEEP IN MIND AS YOU REPRESENT A CLIENT WHO MAY HAVE A MENTAL ILLNESS ........................................................1 SECTION 1 WHAT IS MENTAL ILLNESS AND WHY SHOULD YOU CARE . 5 SECTION 2 CONNECTICUT PUBLIC DEFENDER SERVICES ................................................9 SECTION 3 THE INITIAL INTERVIEW ...................... 12 SECTION 4 WAYS TO OBTAIN INFORMA- TION ........................................................ 19 SECTION 5 PRETRIAL OPTIONS ................................ 24 SECTION 6 COMPETENCY EVALUATIONS AND HEARINGS ................................... 28 SECTION 7 THE “INSANITY” DEFENSE . 37 SECTION 8 “EXTREME EMOTIONAL DIS- TURBANCE” – AN AFFIRMATIVE DEFENSE TO A MURDER CHARGE 41 i i TABLE OF CITED AUTH ORITIES Page SECTION 9 USE OF EXPERT MENTAL HEALTH WITNESSES, MITIGATION, AND SENTENCING STRATEGIES ............ 42 SECTION 10 RECENT DEVELOPMENTS ................ 55 GLOSSARY OF COMMON MENTAL HEALTH TERMS ............................................................................................... 60 COMMONLY PRESCRIBED PSYCHOTROPIC MEDICATIONS ........................................................................ 73 1 TEN THINGS TO KEEP IN MIND AS YOU REPRESENT A CLIENT WHO MAY HAVE A MENTAL ILLNESS 1. MENTAL ILLNESS AND MENTAL RETARDATION ARE NOT THE SAME: Mental retardation is a permanent condition characterized by significantly below average intelligence accompanied by significant limitations in certain skill areas. Mental illness, on the other hand, usually involves disturbances in thought processes and emotions and may be temporary, cyclical, or episodic. Most people with a mental illness do not have intellectual deficits; some, in fact, have high intelligence. It is possible for a person with mental retardation to also have a mental illness. Some of the Connecticut statutes that address mental illness also address mental retardation, and you should look carefully at those statutes for the differences in how the two are addressed. This handbook does not address mental retardation. 2. YOU OWE YOUR CLIENT A ZEALOUS REPRESENTATION: You have the ethical obligation to represent your client zealously, which may include exploring your client’s case for mental health issues. It may also include bringing appropriate motions if your client’s mental illness has affected his or her case in any of the ways discussed in Section 1 of this handbook. A zealous representation may also include an awareness of the client’s medical and medicinal needs during their incarceration. A lack of access to necessary or appropriate medical care and medications can affect the client’s health and demeanor at the early stages of a criminal proceeding. Many mental illnesses require ongoing medical treatment, and an interruption or cessation of that treatment can affect a client and their behavior profoundly. 2 3. IF YOUR CLIENT IS INCOMPETENT, STOP AND ORDER AN EVALUATION: If your client is incompetent, he or she may not be able to make informed decisions about fundamental issues, such as whether to enter into a plea bargain agreement or, instead, proceed to trial. Do not allow your client to accept a plea bargain, or make any other decisions regarding the case, when you have grounds to believe that he or she is incompetent. Instead, immediately request a competence evaluation. 4. MENTAL ILLNESS AND INCOMPETENCE ARE NOT SYNONYMOUS. YOU SHOULD BE CONCERNED ABOUT BOTH: Keep in mind that competence to stand trial is distinct from mental illness, so that some clients who are fit to proceed to trial may still have serious mental illness. Even if your client does not have a competence issue, there may still be significant mental health issues in the case that you should explore. Remember, however, that if your client is competent to stand trial, he or she makes the final decision about how to proceed with the case, whether to explore and raise mental health issues, and whether treatment should be part of a disposition. 5. AN INSANITY DEFENSE MAY BE APPROPRIATE: By taking the time to properly inquire about your client’s mental illness and explore various legal and medical options, you may obtain information that will help you decide if you should explore an insanity or “extreme emotional disturbance” defense. If your client receives a not guilty by reason of insanity verdict, he or she will avoid receiving an unjust conviction. However, as discussed further in Sections 7 and 8 of this handbook, there may be disadvantages to pursuing these defenses and you should discuss all of the pros and cons with your client. 3 6. MITIGATE, MITIGATE, MITIGATE: Mental conditions that inspire compassion, without justifying or excusing the crime, can be powerful mitigation evidence. Part of your job as an attorney may be to present the judge or jury with evidence that reveals your client as someone with significant impairments and disabilities that limit his or her reasoning or judgment. Mitigation evidence can be used to argue for a shorter term of incarceration or for probation instead of incarceration. In capital cases, mental illness and mental health testimony may mean the difference between life and death. 7. INEFFECTIVE ASSISTANCE OF COUNSEL AND REVERSIBLE ERROR: An attorney’s failure to request the appointment or otherwise obtain the assistance of qualified mental health or mental rehabilitation professionals when indicated can be a violation of a defendant’s Sixth Amendment right to effective assistance of counsel and your professional responsibilities. This applies to capital cases as well as other homicide cases and any alleged offense that suggests mental aberration. A defendant’s prior history of mental impairment may indicate that you need the assistance of a professional evaluation. Ake v. Oklahoma, 470 U.S. 68 (1985). Ake also asserts the claim of indigent, convicted defendants to the assistance of mental health professionals at sentencing proceedings. An appellate judge may find reversible error if a client’s incompetence or mental health issues are not raised in court. 8. OVERCOME YOUR OWN POSSIBLE PREJUDICES BEFORE YOU HURT YOUR CLIENT AND HIS OR HER CASE: A popular assumption is that mental-state defenses are attempts by bad persons to “get off” or deny responsibility for their behavior. Many people 4 believe that persons with mental illness, by contrast to those with mental retardation, have the ability to fully appreciate the nature of their acts and control them. This common attitude toward psychiatric disability can deeply influence judges’ and juries’ receptivity of expert witnesses and mental health defenses. Part of your job, if you are representing a person with a mental illness, is to overcome cynicism toward mental health issues in criminal cases. Mental illnesses are neurobiological brain diseases. A mental illness is a medical illness, not “hocus pocus,” and the people who experience it suffer profoundly. Mental illness can be diagnosed, treated, and sometimes even cured. You do your client a disservice by presenting it any other way. 9. INCARCERATION IS PARTICULARLY HARMFUL TO PEOPLE WITH MENTAL ILLNESS: Jails can be very damaging to the stability, mental health, and physical health of people with mental illness. Numerous studies show that placing mentally ill people in single cells, isolation, or “lock down” can worsen their schizophrenia, depression, and anxiety. Mentally ill and mentally retarded adults are also more likely than others to be victimized by other inmates or jail staff. They are at high risk for suicide. They generally get inadequate, if any, medication and treatment while in jail. As set out in Section 5 of this handbook, you should seek to get your client’s case dismissed quickly and, if appropriate, try to get your client released on bond, though this may be difficult to accomplish. 10. DO NOT LET YOUR CLIENT GET CAUGHT IN THE “REVOLVING DOOR”: Many adults with mental illness are arrested for minor offenses that directly relate to their illness, their poverty, or their disturbed behavior. They cycle repeatedly through the courts and jails, charged with 5 the same petty offenses. This “revolving door” is not only a burden to the courts and the criminal justice system, but it is costly to society, to these individuals, and to their families. By quickly pleading your client to “time served” without exploring his or her mental illness, you may lose the opportunity to help your client get better so that he or she does not re-offend. Attorneys should do their best to link mentally ill defendants to appropriate treatment or services that will help them keep out of trouble. While it is important to get your client out of jail as soon as possible, it is equally important to keep him or her from returning to jail. Releasing persons with mental illness back into the community with no plan for treatment or aftercare is a recipe for revocation and recidivism. Don’t set up your client to fail. SECTION 1 WHAT IS MENTAL ILLNESS AND WHY SHOULD YOU CARE WHAT IS MENTAL ILLNESS? Connecticut statutes generally use the term “psychiatric disability” rather than “mental illness.” Section 17a-495 of the Connecticut General Statutes defines a “person with psychiatric disabilities” as “any person who has a mental or emotional condition which has substantial adverse effects on his or her ability to function and who requires care and treatment.”
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